The case of Garriott v. NCsoft presented a challenge to a $28 million judgment for breach of an employee’s stock option contract.  After resolving a liability issue under South Korean law about the employee’s termination, the Court considered whether the judgment impermissibly considered post-breach stock appreciation.  The Court faulted the defendant for not raising its challenge to the damages calculation in a Daubert motion, evidence objection, or charge objection, and rejected the argument under “plain error” review.  Op. at 7-9 (“Displeased with the jury’s decision, NCSoft now asks for a mulligan.”)  The Court also found sufficient direct evidence, consistent with the expert models, as to when the employee would have sold his shares.  Op. at 9 (reminding that damages “may be too speculative if based on ‘assumptions without basis in the real world,'” but that the plaintiff “need not prove damages with mathematical certainty”).

Countrywide Home Loans sought to recover certain post-petition attorneys fees in a Chapter 13 bankruptcy case in Countrywide v. Velazquez.  The Court reviewed the provisions of the relevant Deed of Trust, and concluded that the word “and” in the phrase “do and pay for whatever is reasonable or appropriate to protect Lender’s interest in the Property and rights under this Security Instrument” did not require that a recoverable fee involve both the protection of the lender’s interest and the lien.  (Op. at 6-9 (citing Lanier v. Spring Cypress Investments, 1995 WL 489427 (Tex. App.–Houston [1st Dist.] Aug. 17, 1995, no writ)).  The Court “respectfully disagree[d]” with the unpublished affirmance of a different result by another panel earlier this year in Wells Fargo v. Collins.

In Wal-Mart Stores, Inc. v. Qore, Inc. (originally released in July, revised October 6), Wal-Mart sued several defendants about structural problems with a new store in Starkville, Mississippi.  Wal-Mart won some claims at trial, the share of which for defendant Qore (a geotechnical services firm) was $48,600.  Pursuant to an indenmity provision that reached “any claim, demand, loss, damage or injury (including Attorney’s fees) caused by any negligent act or omission,” the trial court awarded $810,000 in fees against Qore – the substantial majority of Wal-Mart’s fees for the whole case.  The Fifth Circuit agreed that this provision justified a fee award, but found the award excessive because Wal-Mart’s fees could have been segregated, and remanded for further proceedings.  Op. at 6.  The Court noted that Cobb v. Miller, 818 F.2d 1227 (5th Cir. 1987), an attorneys fee dispute in a civil rights case, raised policy issues about “private attorney[s] general” that did not apply to this Mississippi state law matter.  Op. at 13.